Thoughts on SB 169

While SB16-169 awaits the Governor’s signature or veto, we continue locking people with mental health challenges in jails, whether or not they are criminals. Mental health deteriorates in jail. Sometimes legally innocent people kill themselves as a reaction to the frightening loss of freedom, and their inability to cope. SB16-169 does not promise the immediate end to this misuse of jails that we should expect or demand, nor to the imminent threat to life and liberty–but just tinkers with the system in some complicated way that divides even the dedicated advocates of reform.

Americans, of all people, should view wellbeing and liberty as one indivisible thing – not as two things that we allow to be in such terrible misalignment.

The fuss over this bill, which aims to sanction an intolerable practice that is already illegitimately in place while hazily pointing at the need for some evaluation and study that might eventually lead to a better alternative, is not a well-focused use of our community’s energy and resources. Meanwhile, legally innocent people who have been deprived of their personal liberty are languishing and dying.

Our use of jail time as a default is not the deliberate decision of a combined community intelligence, but is rather a consequence of a shortage of available alternatives, and of an ugly social history of not caring enough about–or even actively hating–entire categories of people.

And yet, many who profess a preference for doing something other than incarcerating people who have behaved in some way that is or seems to be unhealthy or unacceptable are immediately halted by the question: “Divert to What?”

The real and urgent question is: shouldn’t we, and those we have charged with enforcing our laws, by default be erring in favor of personal liberty? Rather than arresting and jailing at such tremendous cost, shouldn’t our preference be for community-minded law enforcers who guide, warn, intervene, and keep the peace with the utmost in example-setting civility?

People who have not been convicted of crimes should not be held in jails. What has happened to our standards? This is the fundamental right to personal liberty for which people fought and died to found our nation, and the right for which we continue to send Americans to fight and die in other nations. We should divert to freedom.

In the words of Benjamin Franklin: “Isn’t it better that 100 guilty persons should escape than that one innocent person should suffer?” Don’t we value life and liberty above most else?

Because we lack a better alternative, or the knowledge or will to implement one, we are using jails, prisons, and the judicial system in a way that is punishing, discriminatory, harmful, and life-threatening to the most vulnerable, and that is counter to the basic founding principles of this nation.

In the United States in the twenty-first century, every sentence is a life sentence—even those who have served—or were arrested but not convicted–cannot ever leave the scar of their encounter with this “justice system” behind them. This does not maintain healthy communities or a Land of the Free. It is an abomination and a disgrace.

On principle, we should be clamoring to open up all of the jails today, to keep any innocent person from another hour without liberty. Our efforts should be focused finding ways to engage those we are incarcerating in our common effort to build a thriving community.

Communities across the country already have some of the resources needed to change the trajectories of individuals whose health and behavior have the potential to entangle them in the criminal justice system. We need to support efforts to build these resources and apply our communal intelligence to devising and implementing the alternatives that will support health and preserve individual liberty, rather than spend time splitting regulatory hairs legitimizing and perpetuating an incarceration practice that is unacceptable from a fundamental human rights perspective.

We should all beware of legitimizing the deprivation of an individual’s personal liberty, particularly when we are doing so because appropriate health care is unavailable and we cannot figure out how to alleviate poverty or eradicate racism. We respectfully urge the Governor and legislators, and all other civic-minded individuals and organizations, to continue to set the bar for civic improvement as high as it needs to be in order to put an end to the misuse of incarceration. Let’s finish the community health reform job we have started, and accelerate the healing of a system that too often seems more criminal than just, and that crushes the most vulnerable.

On June 9, 2016, Governor John Hickenlooper vetoed SB169 and directed the Colorado Department of Human Services to create a taskforce to develop solutions to the underlying problems SB 16-169 seeks to address, including recommending public policy changes, by January 2017.